[Notes] The Judicial Standards and Accountability Bill, 2010

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges.

The Bill seeks to:-

Lay down judicial standards,

Provide for the accountability of judges, and

Establish mechanisms for investigating individual complaints for misbehavior or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.

The Bill requires judges to practice universally accepted values of judicial life. These include a prohibition on:

(a) close association with individual members of the Bar who practice in the same court as the judge,
(b) allowing family members who are embers of the Bar to use the judge’s residence for professional work,
(c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned,
(d) entering into public debate on political matters or matters which the judge is likely to decide, and
(e) engaging in trade or business and speculation in securities.

Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an Investigation Committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.

Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel.

A Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.

The Oversight Committee will consist a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, theAttorney General for India, and an eminent person appointed by the President.

If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.

The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard without him present.

If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament.

A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry.

The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

Key Issues and Analysis

The key issue is whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill. The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.

The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.

The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.

The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.

The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.

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